State of Chhattisgarh v. Smt. Kunti and
Case Details
Page No.1 of 1 IN CRA-680-2018 & CRA-715-2018 SAIFAN KHAN Digitally signed by SAIFAN KHAN 2025:CGHC:36085-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR [Arising out of common impugned judgment dated 18.03.2018, passed in Sessions Case No.R-90/2016 (State of Chhattisgarh v. Smt. Kunti and 02 others) by the 2nd Addl. Judge to the Court of Addl. Sessions Judge, Ramanujganj, District Balrampur (Ramanujganj)] Criminal Appeal No. 680 of 2018 Smt. Devpat, W/o Rambichar, aged about 46 years, R/o- Village- Sarna, Patelpara, Police Station- Raghunathnagar, District- Balrampur- Ramanujganj (Chhattisgarh) --- Appellant (On Bail) Versus State of Chhattisgarh Through- Police Station Raghunathnagar, District- Balrampur, Ramanujganj, (Chhattisgarh) --- Respondent WITH Criminal Appeal No. 715 of 2018 1 - Smt. Kunti, Died and Deleted as per C.O. dt. 25.07.2025 2 - Rambichar S/o Ramji Aged About 53 Years R/o Village Sarna Patelpara, Police Station Raghunathpur, District Balrampur- Ramanujganj (Chhattisgarh) ---Appellants (On Bail) Versus State of Chhattisgarh, through Police Station Raghunathpur, District Balrampur-Ramanujganj (Chhattisgarh) --- Respondent [Cause-title taken from Case Information System (CIS)] ---------------------------------------------------------------------------------------------- For Appellants For Respondent
Legal Reasoning
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." 1 (1984) 4 SCC 116 Page No.8 of 8 IN CRA-680-2018 & CRA-715-2018 (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (13) In the case at hand, as projected by the prosecution and further relied upon by the learned trial Court that accused- Smt. Kunti (A-1), who died during the pendency of her appeal, has made confession in her memorandum statement recorded vide Ex.P/05 that she was having illicit relationship with the deceased for very long time and when the deceased was not coming to meet her for quite some time, she developed suspicion that the deceased was having relationship with another women and, upon which, she committed his murder and threw the dead-body in the fields of Awadh Bihari with the aid and assistance of appellants- Rambichar (A-2) and Smt. Devpat (A-3). Further, pursuant to the said memorandum statement of Kunti (A-1), one wooden log/stick was also seized vide Ex.P/06. However, witnesses to said memorandum statement (Ex.P/05), namely, Rajesh Jaiswal (PW-03) and Ram Page No.9 of 9 IN CRA-680-2018 & CRA-715-2018 Vinay Sen (PW-08) both have turned hostile and not supported the case of the prosecution. Even otherwise, it is settled legal position that the confessional part of the accused is not admissible in evidence, in view of decision of the Supreme Court in the matter of Babu Sahebagouda Rudragoudar and others v. State of Karnataka 2 , whereby relying upon earlier decision of State of U.P. v. Deoman Upadhyaya 3 their Lordships have clearly held in Para-61 as under: “61. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in [State of U.P. v. Deoman Upadhyaya, 1960 SCC OnLine SC 8 : AIR 1960 SC 1125].” (14) In that view of the matter, the conviction of the appellants, as imposed upon by the learned trial Court, on the basis of confessional statement made by another accused is not in accordance with law and same deserves to be set aside. Furthermore, though it has been held that motive on the part of the appellants herein to commit murder of the deceased has been established as the deceased was having illicit relationship with accused- Kunti (A-1) and, when the deceased refused to come with her, accused- Kunti (A-1) with the help of appellants herein caused his murder and threw the dead- 2 (2024) 8 SCC 149 3 AIR 1960 SC 1125 Page No.10 of 10 IN CRA-680-2018 & CRA-715-2018 body in the fields, but it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri 4 ). Further, the decision rendered in the matter of Mahendra Singh vs. State of M.P. 5 their Lordships of the Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. We hereby hold accordingly. (15) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellants for the offences in question being the author of the crime in question in light of above-mentioned incriminating circumstances and same is liable to be set aside. (16) Accordingly, the conviction and sentence of the appellant- Rambichar (A-2) for offence under Section 302/34 & 201/34 of IPC, that that of appellant- Smt. Devpat (A-3) for offences under Section 201/34 of IPC, as imposed upon them by the learned trial Court, are 4 (2012) 4 SCC 124 5 (2022) 7 SCC 157 Page No.11 of 11 IN CRA-680-2018 & CRA-715-2018 hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are reported to be on bail, therefore, they need not to surrender. However, their bail bonds shall remain in operation for a further period of 06 months in view of provision contained under Section 437-A of CrPC. (17) Both the criminal appeals are allowed. (18) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any. Sd/- (Sanjay K. Agrawal) Judge Sd/- Judge (Sachin Singh Rajput) s@if
Arguments
: Mr. A.K. Yadav, Advocate : Mr. Sharad Mishra, Panel Lawyer Page No.2 of 2 IN CRA-680-2018 & CRA-715-2018 ---------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (25.07.2025) Sanjay K. Agrawal, J (1) Regarding being had to the similitude of the questions of fact and law involved and being arising out of a common impugned judgment dated 18.03.2018, both these criminal appeals are clubbed together, heard together and are decided by this common judgment. (2) These criminal appeals preferred under Section 374(2) of Cr.P.C., by accused-appellants, namely, Rambichar (A-2) and Smt. Devpat (A-3) are directed against the impugned judgment of conviction and order of sentence dated 18.03.2018, passed in Sessions Case No.R-90/2016 (State of Chhattisgarh v. Smt. Kunti and 02 others) by the 2nd Addl. Judge to the Court of Addl. Sessions Judge, Ramanujganj, District Balrampur (Ramanujganj), whereby they have been convicted and sentenced as under: As regards appellant- Rambichar (A-2): Conviction Sentence U/s. 302 r/w S. 34 of IPC Imprisonment for life with fine of Rs.5,000/- and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 01 year. U/s. 201 r/w S. 34 of IPC Rigorous imprisonment for 02 years with fine of Rs.1,000/- and, in default of payment of fine amount, sentenced to Page No.3 of 3 IN CRA-680-2018 & CRA-715-2018 undergo imprisonment for 01 month. additional rigorous As regards appellant- Smt. Devpat (A-3): Conviction Sentence U/s. 201 r/w S. 34 of IPC Rigorous imprisonment for 02 years with fine of Rs.1,000/- and, in default of payment of fine amount, sentenced to undergo rigorous additional imprisonment for 01 month. (3) The case of the prosecution, in a nutshell, is that in the intervening night of 01/02.09.2016, at Sarna, Patelpara, which comes within the ambit of Police Station- Raghunathnagar, District- Balrampur- Ramanujganj (CG), the accused/appellants herein in furtherance of their common intention committed murder of Gulab Chand Kewat (hereinafter referred to as the “deceased”) by assaulting him by means of ‘danda’ (wooden stick) and, further, in order to screen themselves from the legal punishment, threw the dead-body of the deceased in the fields of Awadh Bihari and, thereby, said to have committed the aforesaid offence. (4) It is further case of the prosecution that when the matter was reported to the police merg intimation (Ex.P/10) and FIR (Ex.P/11) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/01 and inquest proceedings were also conducted vide Ex.P/02. Site map was prepared vide Ex.P/03. The dead-body of the deceased was sent Page No.4 of 4 IN CRA-680-2018 & CRA-715-2018 for postmortem examination and in the postmortem report (Ex.P/13A), conducted by Dr. Kamini Rai (PW-10), it has been opined that the cause of death of the deceased is asphyxia due to respiratory failure caused by throttling and nature of death is homicidal. Spot map was also prepared vide Ex.P/13. The accused- appellants were arrested vide Ex.P/08 & Ex.P/09 respectively. Memorandum statement of accused- Kunti (A-1) [now dead] was recorded vide Ex.P/05 and, pursuant to which, one wooden stick was seized/recovered vide Ex.P/06. Certain other articles were also seized from the spot vide Ex.P/04. Clothes of the deceased were also seized vide Ex.P/17. However, the seized articles were not sent for chemical examination for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellants in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and has been falsely implicated. (5) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 22 documents, whereas the appellants/accused in support of their defence, have neither examined any witness nor exhibited any document. Page No.5 of 5 IN CRA-680-2018 & CRA-715-2018 (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict appellant- Rambichar (A-2) for offence under Section 302/34 & 201/34 of IPC, where convicted appellant- Smt. Devpat (A-3) for offences under Section 201/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which these two appeals have been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. A.K. Yadav, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for the aforesaid offence, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that the incriminating circumstances that has been culled out in Para-22 of the impugned judgment are not established beyond reasonable doubt and, therefore, the appellants are entitled for acquittal. Hence, both the appeals deserves to be allowed and the appellants are liable to be acquitted of the said charges on the basis of benefit of doubt. (8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of Page No.6 of 6 IN CRA-680-2018 & CRA-715-2018 prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for the aforesaid offences and, therefore, the present appeal deserves to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/13A), wherein it has been opined that the cause of death of the deceased is asphyxia due to respiratory failure caused by throttling and nature of death is homicidal, which is duly proved by the statement of Dr. Kamini Rai (PW-10). Accordingly, taking into consideration the postmortem report (Ex.P/13A) and the statement of Dr. Kamini Rai (PW-10), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (11) Now, the next question would be whether the accused- appellants herein are the author of the crime or not, which the Page No.7 of 7 IN CRA-680-2018 & CRA-715-2018 learned trial Court has recorded in affirmative by relying upon following incriminating circumstances as culled out in Para-22 of the impugned judgment, which reads as under: “1. अभि(cid:3)यु(cid:5)क्त के(cid:9) बरा(cid:12)मदगी(cid:16) ሺኋ(cid:12)पन / म(cid:25) ्ቚयु(cid:5)क्त वस्त(cid:5) बरा(cid:12)मद हो(cid:20)न(cid:12) । 2. ” हो(cid:9)त(cid:5)के के(cid:12) प(cid:12)यु(cid:12) जा(cid:12)न(cid:12) । म(cid:9)म(cid:20)रा(cid:9)्म केथन के(cid:9) आधा(cid:12)रा परा (12) Since, the present case is based on above-stated circumstantial evidence, therefore, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the 1 matter of Sharad Birdhichand Sarda vs. State of Maharashtra which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: (1) the circumstances from which the “153. …. conclusion of guilt is to be drawn should be fully established.